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Chief Justice John Marshall 



COMPLIMENTS OF 




EXERCISES ON THE EVENING OF FEBRUARY 4, 1901, IN 

THE UNITED STATES DISTRICT COURT ROOM 

AT SAVANNAH, IN HONOR OF 

THE MEMORY OF 



CHIEF JUSTICE 

JOHN MARSHALL 



ADDRESS 



OF 



HON. EMORY SPEER 



DELIVERED AND PUBLISHED AT THE REQUEST OF 
THE CHATHAM COUNTY BAR 



a.^ 



MACON, GEORGIA: 

THE J. W. BTJRKE COMPANY, 

1901. 



te 
K 



CORRESPONDENCE. 



Savannah, Ga., January 22d, 1901. 

The Honorable Emory Speer, 

United States Judge, 

Savannah, Ga. 
Dear Sir : 

In honor of the One Hundredth Anniversary of the 
appointment of John Marshall as Chief Justice of the Supreme 
Court of the United States, the undersigned beg that you will 
address the members of the Bar of Chatham County at the 
United States Court room on February 4th next, at such time 
as will be most agreeable to you, on the life and times of the 
greatest of the Chief Justices of the Supreme Court of the 
United States. 

Please send your reply to Judges Falligant and Norwood. 
Very respectfully yours, 

R. Falligant, 
Judge Superior Court Eastern 

Judicial Circuit of Georgia. 
Thomas M. Norwood, 
Judge City Court of Savannah, 

and Eighty Members of the Bar. 



Chambers United States Judge. 



Savannah, Ga., January 25th, 1901. 
To the Honorable Robert Falligant, 

Judge of the Superior Court, Eastern 
Judicial Circuit of Georgia, and 
To the Honorable Thomas M. Norwood, 

Judge of the City Court of Savannah. 
Gentlemen : 

I have the great honor to acknowledge the letter 
signed by yourselves and the members of the learned and 



renowned Bar of Savannah for whom you preside, inviting me 
to deliver on the fourth of February, an address on the life and 
times of Chief Justice Marshall. 

Believe me that such an invitation from no other body 
could give me pleasure more sincere, nor could I be assigned 
a duty more congenial than to attempt to express the reverence 
I have for the great Expounder of the Constitution. I fear, 
however, that the continued and exhausting exactions made 
upon me by the business of the courts now in daily session will 
seriously interfere with the proper performance of this duty, 
and while I accept with cordial thanks the honoring invitation, 
I bespeak in advance the indulgence of my professional 
brethren. 

As suggested in 3'^our letter, I take the liberty of indicating 
that the address v;ill be made at a session of the United States 
Court, in the United States Court room, at 8 o'clock Monday 
evening, the fourth of February, at which the Judges, mem- 
bers of the Bar, their families and friends, and friends of the 
Court, and more especially the lady friends of us all will be 
cordially welcomed. 

I remain. Gentlemen, with great esteem. 

Very sincerely yours, 

Emory Spebr. 

Pursuant to the foregoing correspondence, at 8 o'clock on 
the evening of the 4th of February, a brilliant audience having 
crowded the United States Court room at Savannah, large num- 
bers vainlv seeking admission, Hon. Robert Falligant, Judge 
Superior Court Eastern Judicial Circuit of Georgia, Hon. 
Thomas M. Norwood, Judge City Court of Savannah, and Hon. 
Emory Speer, Judge United States District Court Southern 
Distridl of Georgia, took seats on the bench, court was 
formally opened by John M. Barnes, Esq., United States Mar- 
shal for the Southern Distri(5t of Georgia, when the following 
exercises were had : 

Judge Falligant addressing the audience, said : 
" The exercises will now be opened by prayer by Rev. Bas- 
com Anthony, of Trinity Methodist Church." Mr. Anthony 
offered the following prayer, all present reverently standing : 



O, God, our Father, thou art our God and the God of our 
fathers. We worship thee uot only for the multitude of thy 
mercies but for the glory of thy character and the perfe<5lion of 
thy being. We bless thee that thou hast shown thyself strong 
in our behalf ; that thou didst lead forth our fore fathers, a 
feeble folk, and establish them in the earth, sheltering them 
with thy mighty hand, until thou hast made us their children 
to inherit the fulness of the earth and to have place among the 
mighty. 

We thank thee that thou didst not forsake our fathers ; 
neither forsake thou us, but lead us as thou didst lead them, so 
that our feet shall abide in a sure place. We thank thee that 
when they were oppressed thou didst send them a deliverer, 
and that when an emergency was upon them thou didst always 
raise up a man equal to the demands of the hour. 

We give thee thanks for the great man whose civic virtues 
we are met this night to recount. May we never lack for capa- 
ble, honest and God-fearing men in all our judiciary. Give us 
men to sit in our courts who shall administer unto the people 
justice tempered with mercy, so that our laws shall be revered 
and our statutes observed ; so that the mob come not and vio- 
lence be not found in all the land. 

Bless thy servant, this minister of justice, who shall speak 
to us at this tinie of our illustrious dead. Give unto him words 
worthy bf this occasion and of the great man whose life's work 
shall be brought before us. May the influence of this hour not 
exhaust itself in admiration of the virtues of the dead, but may 
we reproduce in our lives the civic worth we eulogize, and 
illustrate in our doings the virtues we commemorate. 

Grant these things unto us that we and our children may 
abide in peace in the land which thou hast given us, making it 
not only freedom's home, but by our faithfulness to thee and to 
one another making it none other than the land of thy delight 
and the very gate of heaven. These things we ask for Christ's 
sake. Amen- 

On the conclusion of the prayer, Judge Falligant arose and 
addressed the audience as follows : 



ADDRESS OF JUDGE FALLIGANT. 



Ladies and Gentlemen : 

This occasion should be one of deep impress to every 
patriotic American. We are here to do homage to the charac- 
ter, ability, and illustrious services of the greatest of Chief 
Justices of the Supreme Court of the United States upon the 
centennial of his accession to that high and dignified oflace. 
The Bench and Bar of the country unite this day with the peo- 
ple all over the land in universal acclaim of Chief Justice John 
Marshall. 

A great English statesman said, "The American Constitu- 
tion is the most wonderful work ever struck off at a given 
time by the brain and purpose of man." John Marshall 
became and was the great expounder of its dormant and far 
reaching powers. "He helped to achieve independence by 
his sword in his youth, and in his manhood created a nation 
by his judicial pen." Of him it has been felicitously said, 
" Marshall found the constitution paper and made it a power ; 
he found it a skeleton and clothed it with flesh and blood." 

Those familiar with our earlier history recall the intensity 
of party passion perhaps fiercer than at any other period. 
When the great constitutional decisions were pronounced, 
which are the foundation of Marshall's imperishable fame, 
another great Virginia, patriot and thinker, Thomas Jefferson, 
read them with consternation. Jealous of the reserved rights 
of the States he wrote, "The germ of the dissolution of our 
Federal government is in the constitution of the Federal judici- 
ary, an irresponsible party working like gravity by night and 
by day, gaining a little to-day and a little to-morrow and 
advancing its noiseless step like a thief over the field of juris- 
didlion until all shall be usurped from the States and the gov- 
ernment of all be consolidated into one." 

The political history of our country was constantly agitated 
by conflidling constitutional interpretations. Some were set- 
tled by that august tribunal the Supreme Court, which Marshall 



8 

reg:arded the fiual arbiter, but others remained burning ques- 
tions until the fires were quenched in patriot blood and a final 
decision rendered in the awful arbitrament of the fiercest and 
most prolonged civil war the world has known. 

It was said of an ancient h^ro, " Ulysses has gone upon his 
travels and there is none in Ithica can bend his bow." 

This was never true of America. In all crises of her his- 
tory men have arisen to fill and illustrate the full measure of 
their country's greatness. Since the days of Marshall no jus- 
tice of the vSupreme Court has been regarded by the Bench and 
Bar of the country as more able than the late Associate Justice 
Samuel F. Miller. In the light of Jefferson's prophetic words 
it is well to recall what Associate Justice Miller said on the 
occasion of the Centennial of the Constitution of the United 
States. Our country had but recently emerged from the 
supreme test of the most colossal and titanic struggle of history. 
As the mouthpiece of the Supreme Court he said : 

" May it be long before such an awful lesson is again needed 
to decide upon disputed questions of constitutional law. It is 
not out of place to remark that while the pendulum of public 
opinion was swung with much force away from the extreme 
point of States-right dodlrine, there may be danger of its reach- 
ing the extreme point on the other side. In my opinion the 
just and equal observance of the rights of the States and of the 
General Government, as defined by the present constitution is 
as necessary to the permanent prosperity of our country and to 
its existence for another century, as it has been for the one 
whose close we are now celebrating." 

I must apologize for this brief glance at a great past because 
I know you are eagerly awaiting the thrilling touch of a master 
hand. The man and the occasion meet in a brilliant and dis- 
tinguished Georgian ; and I as a Georgian take peculiar pride 
and pleasure in introducing one whose fame is already national 
as a jurist, statesman, and orator, in the plentitude of his splen- 
did intellectual culture and power and in all the glory of his 
matchless eloquence, the Hon. Emory Speer. 



ADDRESS OF JUDGE SPEER. 



Eadies and Gentlemen : 

It is interesting to refledl that John Marshall was 
born in the beautiful county of Fauquier in Virginia, in a terri- 
tory more than a century thereafter, to become famous to the 
veterans of Eee, as " Mosby's Confederacy." He was born on 
the 24th of September, 1755. His father, Thomas Marshall, 
came from the celebrated county of Westmoreland, referred to by 
a Governor of Virginia, with a degree of State pride not as yet 
altogether extindl in Virginians, as " the prolific soil that grows 
Presidents." It is true that Washington, Madison and Monroe 
all came from the county of the sturdy patriot, the father of the 
famous Chief Justice. Marshall, the father, was born the same 
year with Washington. He was indeed the companion of the 
patriot commander, when the latter surveyed for his friend Eord 
Fairfax, the primeval wilderness shading with its imperial 
frondage the fertile and famous valley of Virginia, and, like 
Washington, he was one of the first to fly to arms, to resist the 
aggressions of the British Ministry. He was successively the 
Colonel in the Third Virginia Infantry, in Woodford's Brigade, 
and the First Virginia artillery in the Continental line, and 
fought with distinguished valor at Germantown and Brandy- 
wine, having three horses killed under him, and largely 
through his skill and courage at Brandywine the defeated Con- 
tinental forces were enabled to extricate themselves from dis- 
aster. 

Two years after the treaty of peace. Col. Marshall, v/ith the 
younger members of his family, traversed the romantic passes 
of the westward mountains, and founded a new home in the 
heart of the Bluegrass, in a now renowned county of Kentucky, 
which he caused to be called "Woodford" in honor of his Briga- 
dier, under whom he had led " the ragged continentals fearing 
not." Of the father of John Marshall, Justice Story said : 

" I have often heard the Chief Justice speak of him in terms 
of the deepest affedliou and reverence. I do not here refer to 



lO 

his public remarks, but to his private and familiar conversa- 
tions with me, when there was no other listener. Indeed he 
never named his father on these occasions, without dwelling on 
his character with a fond and winning enthusiasm. It was a 
theme on which he broke out with spontaneous eloquence, and 
in a spirit of the most persuasive confidence he would delight 
to expatiate upon his virtues and talents. ' My father ' would 
he say with kindled feelings and emphasis, * my father was a 
far abler man than any of his sons. To him I owe the solid 
foundation of all my own success in life.' " 

Oh, what a heritage was this! The tender devotion, the 
profound gratitude, the unbounded veneration of a son for such 
a father, incomparably more priceless than wealth, beyond the 
dreams of avarice, incomparably more priceless to the forma- 
tion of charadler, to usefulness and happiness in this life, and 
to the hope of eternal happiness in that to come. 

Of the mother of John Marshall much is not known. She 
belongs to that period in the society of the Old Dominion so 
delightfully portrayed by Thackeray in his "Virginians," but I 
am quite sure, that unlike the I^ady Esmonds of her times, she 
did not in stately brocade or rustling silks glide through the 
mazes of the minuet, or prance with alacrity in the contra 
dance. She had other engagements. She was the mother of 
fifteen children, of whom the future Chief Justice was the eld- 
est, and such was her solicitous care that she reared them all 
until they were grown. It will be seen that this noble Virginia 
dame, measured well up to the standard of feminine greatness, 
defined by the malice of Napoleon, for the contemplation of 
Madame de Stael. Her maiden name was Mary Isham Keith. 
Her father was an Episcopal minister and a full cousin of that 
famous Field Marshal James Keith, perhaps the most renowned 
of the lyieutenants of the Great Frederick. It is said that all 
great men are the sons of great mothers. The rule is general, 
but not universal. It is safer perhaps to say that great men are 
almost invariably the offspring of parents whose marriage has 
been the outgrowth of mutual disinterested affe(5lion, and 
whose devotion is ever ardent, as when the first wave of feeling 
spray-like broke into motion, and they knew that they loved. 

In the great Chief Justice, notwithstanding the noble quali- 



II 

ties of the father, I think one may see indications that much of 
the chara(5ler of the son came from the maternal side. In Car- 
lyle's Life of Frederick the Great there are recorded many 
traits in Field Marshal Keith, which are discernible in his 
American cousin. He is a soldier of fortune and, like the expa- 
triated Scottish gentlemen of that day, offers his sword wher- 
ever he may have honorable service. Frederick earnestly 
watches him while he is serving Russia, and concludes what he 
does is done in " a solid, quietly eminent and valiant manner." 
"Sagacious, skillful imperturbable, without fear and without 
noise, a man quietly ever ready." Finally nine years before 
our Chief Justice is born, his service with the Russians being 
ended, Frederick grasps eagerly at the Scottish soldier's offer 
to serve him. " Well worth talking to, though left very dim to 
us in the Books," writes the same biographer, of a later time, 
"is Marshal Keith who has been growing gradually with the 
King, and with everybody ever since he came to these parts in 
1747. A man of Scotch type ; the broad accent, with its saga- 
cities, veracities, with its steadfastly fixed moderation, and its 
sly twinkles of defensive humor, is still audible to us through 
the foreign wrappages. Not given to talk, unless there is 
something to be said, but well capable of it then." All through 
the wonderful pages of this story of the last of the great Kings, 
this Scotch cousin of John Marshall is showing these Marshall 
traits. At the famed battle of Prag, fought May 6, 1757, which 
sounded through all the world, also commemorated in a com- 
position alleged to be musical, with which vigorous pianists, 
mostly feminine, from that day to this have deafened mankind. 
At the glorious vidlory of Rossbach. At the siege of Olmutz. 
On the retreat to Koniggratz. At Breslau, and on the bloody 
day at Hochkirch, where, having saved the Prussian Army, 
shot through the heart, "Keith's fightings are suddenly all 
done." "In Hochkirch Church," writes Carlyle, "there is 
still a fine, modestly impressive Monument to Keith ; modest 
Urn of black marble on a Pedestal of gray, and in gold letters 
an inscription." in I^atin, which "goes through you like the 
clang of steel." "Frederick's sorrow over him is itself, a 
monument. Twenty years after, Keith had from his Master a 
Statue, in Berlin, which still stands in the Wilhelm Platz there." 



12 

Early evincing the power and saueness of his mind, by a 
strong love of literature, it is said that the future Chief Justice 
at the age of twelve could recite a large portion of the writings 
of Pope, and was familiar with Dryden, Shakespeare and Mil- 
ton. At the age of fourteen he was sent to the classical aca- 
demy of the Messrs. Campbell, Scotchmen, who had established 
a famous school in Westmoreland county, where Washington 
and Monroe and many other famous Virginians had received 
instrudlion. 

At the age of eighteen he began the study of law, but was 
not long permitted to devote himself to the service of that jeal- 
ous mistress. The war of the Revolution came and the volun- 
teers of Culpepper, Orange and Fauquier counties organized 
themselves into a regiment of Minute Men. These were the 
citizen soldiery of whom John Randolph afterwards said that 
the}'' were " raised in a minute, armed in a minute, marched iu 
a minute, fought in a minute, vanquished iu a minute." 

Appreciating his forceful qualities, his neighbors gave him 
the appointment of First I^ieutenant in one of the companies. 
The military career of the future Chief Justice was not brilliant 
but it was marked by quiet endurance, adtive service and con- 
stant valor. He was personally engaged with his command at 
the bloody defeats of Brandywine and Germantown and at the 
scarcely less bloody, but partial vi(5lory, on that torrid and fam- 
ous day at Monmouth, and, with the utmost loyalty to the patri- 
otic cause went into winter quarters at Valley Forge, where also 
were his father and two brothers with Washington's starving 
and exhausted army. The story of that memorable encamp- 
ment is, in every word, radiant with glory for our revolutionary 
sires. The cold was intense and yet the soldiers were often 
almost naked and as a rule they were without shoes, so that 
they could be tracked by the blood from their frozen feet. A 
messmate of Marshall during this period was I^ieut. Phillip 
Slaughter. He relates that his own supply of linen was one 
shirt and that while having this washed he wrapped himself in 
a blanket. All the while, however, that renowned Prussian 
martinet, Baron Steuben, was drilling the continental army, and 
Slaughter had wristbands and a collar made from the bosom of 
his shirt to complete his uniform for parade. Had he been 



13 

compelled to throw off his uniform coat, his under-garment 
would have resembled the vest of Porthos in Dumas' delight- 
ful story. Of Marshall, this comrade writes affedlionately : 

" He was the best tempered man I ever knew. During his 
sufferings at Valley Forge, nothing discouraged, nothing dis- 
turbed him. If he had only bread to eat it was just as well ; if 
only meat, it made no difference. If any of the officers mur- 
mured at the deprivations, he would shame them by his good 
natured raillery, or encourage them by his own exuberance of 
spirits. He was an excellent companion, and idolized by the 
soldiers and his brother officers, whose gloomy hours he enliv- 
ened by an inexhaustible fund of anecdote." 

It was at this period that he began to show his judicial capa- 
city and fairness of mind. He was constantly chosen by his 
brother officers to decide their many disputes, and his judgment 
in writing was usually accompanied by such sound reasons that 
the irritable disputants were generally satisfied. In addition to 
his service in the field, he was appointed Deputy Judge Advo- 
cate of the army, and thrown into personal relations with 
Washington, won the enduring confidence and affe(5lion of His 
Excellency. It appears, however, that the patriots had need 
for his services, *other than those judicial. He was a member of 
the party covering the forlorn hope who, under Mad Anthony 
Wayne, swarmed up the precipitous height at Stony Point, 
and with the bayonet mastered entrenchments, which the scien- 
tific leaders of the British Army had deemed impregnable. 
That part of the Virginia line to which he was attached being 
now mustered out, left without a command, the young patriot 
went to Virginia to obtain service with the new levies from that 
State. Repairing to the old capitol at Williamsburg to await 
the hesitating adlion of the State legislature, he took advantage 
of the opportunity to attend the law ledlures delivered by the 
famous Chancellor Wythe of William and Mary College, and as 
a consequence in the ensuing summer was enabled to obtain a 
license to pradlice law. 

We may not safely conclude that at this period of his young 
and vigorous life, it was all work and no play with the soldier 
student. At Williamsburg, according to a biographer of Jeffer- 
son, " there were cakes and ale in those days, young girls and 



14 

dancing at the Raleigh tavern, cards and horses ; and the young 
Virginians had their full share of all these good things." Jef- 
ferson had read law with this same Chancellor Wythe, whose 
private secretary was Henry Clay, the "Mill boy of the 
'Slashes,'" that region for the amphibians not far away. 
Marshall, however, did not fail to make repeated efforts to 
again obtain adlive service with the patriot forces and with that 
hope a(5lually walked from his home in Virginia to Philadel- 
phia. The war, however, was about over. There was a 
redundancy of oflScers of the Virginia line, and no additional 
troops being raised, he was unwilling to remain longer a super- 
numerary and in 1781 resigned his commission, and entered 
upon the pradlice of the law in his native county of Fauquier. 

The young soldier lawyer rose rapidly at the bar. His 
career was not as brilliant from the beginning as that of another 
soldier lawyer of Scotch descent, who two years before had been 
called to the bar by the Society of lyincoln's Inn, for after the 
first argument of Thomas Erskine before I/Ord Mansfield, the 
attorneys flocked around him with their retainers, and he could 
rush home to his wife and children flourishing a handful of 
banknotes and shouting " a nonsuit to the cowheel and tripe." 
Yet the success of the young Virginian barrister was steady and 
progressive. With a Keith like modesty he attributed his suc- 
cess to the friendship of his old comrades in arms, a soldierly 
disposition which in more recent times has contributed reward 
and renown to some of our own contemporaries. 

The close of the Revolution was a fortunate period for the 
young pradlitioner. The changes of property, the innumerable 
outstanding debts, contradls, and old controversies long delayed, 
were fruitful sources of litigation, profitable, at least to counsel. 
So remarkable was the success of Marshall, that after two years 
pradlice in Fauquier and adjacent counties he had established 
a reputation, augmented by his distinguished services in the 
Virginia Assembly, which justified him in removing his oflfice to 
Richmond, where almost at once he took the lead among the 
renowned lawyers of that famous Capital. And they were foe- 
men worthy of his steel. Among them were such names as 
James Knuis, Alexander Campbell, Benjamin Botts, Edmund 
Randolph, John Wickham, and most famous of all Patrick Henry. 



15 

The eloquent William Wirt has left us a graphic account of 
Marshall's style of argument in the courts : 

"All his eloquence consists in the apparently deep self-con- 
vidlion and the emphatic earnestness of his manner ; the cor- 
respondent simplicity and energy of his style ; the close and 
logical connedlion of his thoughts ; and the easy gradations by 
which he opens his lights on the attentive mind of his hearers. 
The audience are never permitted to pause for a moment. 
There is no stopping to weave garlands of flowers, to hang in 
festoons around a favorite argument. On the contrary every 
sentence is progressive ; every idea sheds a new light on the 
subjea." 

On January 3, 1783, the happy young life of John Marshall 
received its crowning joy by his intermarriage with Mary Wil- 
lis Ambler, a daughter of Jaqueline Ambler, Treasurer of Vir- 
ginia. We are afforded this charming account of his meeting 
with his sweetheart from a letter from her sister, Mrs. Edward 
Carrington, published in that interesting work " Colonial Days 
and Dames" by Anne HoUingsworth Wharton. It seems that 
the bachelor lawyer had a mind to attend a ball at York and 
his coming was not unheralded. " Our expedlations," writes 
Mrs. Carrington, "were raised to the highest pitch, and the 
little circle of York was on tiptoe on his arrival. Our girls 
particularly, were emulous who should be the first introduced; 
it is remarkable that my sister, then only fourteen and diffident 
beyond all others, declared that we were giving ourselves use- 
less trouble, for that she, for the first time, had made up her 
mind to go to the ball (though she had not even been to a 
dancing school), and was resolved to set her cap at him and 
eclipse us all. This in the end proved true, and at the first 
introdudlion he became devoted to her." This union he 
declared continued the chief happiness of his life and it endured 
in uninterrupted affedtion and confidence for a period of more 
than fifty years. 

We now approach the period of his services as a statesman. 
His sagacity had enabled him to observe with clearness the 
defecfls of the government which had for a paper title the old 
Articles of Confederation, that " pageant of State sovereignity," 
which all now agree was a government in name and not in fadt. 



i6 

It was ou the 19th of October, 1781, when the famous regulars 
of I^ord Coruwallis marched out of their works at Yorktown 
and in the presence of the spic and span regiments of France, 
and the unkempt but seasoned and warlike veterans of Wash- 
ington, piled their arms in capitulation. Their bands were not 
permitted to play either a British or American martial air, and 
so the red-coated fife and drum corps of King George's army, 
as in lugubrious procession it marched by, struck up the music 
of an old song entitled " The world turned upside down," 
doubtless singularly expressive of their emotions at that time. 

The preceding years since the "shot heard round the 
world" at I^exington on the 19th of April, 1775, had been 
pregnant with the fortunes of America and 5'et for the last term 
of seven months and a half of the adlual struggle, the war was 
carried on without a government save the uncertain, insuj6&- 
cient and largely inutile authority of the Continental Congress. 
This body termed itself " The Delegates appointed by the good 
people of these Colonies." 

Benjamin Franklin, with his rare sagacity, had previously 
suggested to Congress a scheme for union between the colonies 
until reconciliation with the mother country, and if that should 
fail, a perpetual union. For a time his suggestion met with 
little favor. When, however, the overmastering desire for 
complete independence dominated the delegates they began to 
think of union, and so, on the 12th day of June, 1776, the day 
after the committee was selected to draft the declaration of 
independence, another committee was appointed to prepare and 
digest a form of confederation. There was much debate, many 
changes, and not until the 15th of November, 1777, a year and 
six months after the debate was begun, did the draft receive the 
final approval of Congress. It had now to be adopted by the 
States. There was much hesitation and obje(5lion, and not 
until March i, 1781, when John Hanson and Daniel Carroll 
representing the State of Maryland affixed their names to the 
instrument, did the Thirteen States possess any semblance of an 
orderly Union. 

In the absence of anything like Union, the previous years 
were teeming with events, which every patriot should know, 
which every American youth, who for a moment has permitted 



17 

himself to indulge in a distrust of our government, should have 
stamped upon his memory as if they were chiseled into the liv- 
ing adamant. 

The Continental Congress had been without credit. It had 
no power to colledl taxes, and in the absence of such power 
taxes were not paid. Therefore obligations of Congress could 
not be paid and they were dishonored. At the end of the year 
1779 a Continental dollar was worth less than two and a half 
cents. A common expression was that a wagon load of money 
would not buy a wagon load of provisions. A metaphor of 
depreciation " not worth a continental" originated then and 
somewhat expanded still enlivens our vocabulary. It is not an 
agreeable refledlion to recall that our ally the King of France 
was lending us money wrung by merciless taxation from the 
sans culottes, while man for man, the American people were far 
richer than the people of France. Such is the debility of gov- 
ernment where there is no power to compel the citizen to bear 
his share of its burdens. The leaders of the patriots were in 
despair. Patriotic and devoted regiments, unpaid, naked and 
starving paraded with their arms, declaring their purpose to go 
home to obtain food. " Nothing stopped them" writes a con- 
temporary "save the influence of the commander in chief whom 
they almost adore." 

Washington wrote "Certain I am unless Congress is vested 
with powers by the several States competent to the great pur- 
poses of war, or assumes them as matter of right, our cause is 
lost." I^aFayette, writing to that beautiful young wife from 
whose arms he had flown, to draw his stainless sword for the 
cause of freedom, declared : 

"No European army would suffer the one-tenth part of what 
the American troops suffer. It takes citizens to support hunger 
nakedness, toil, the total want of pa}-^, which constitutes the 
condition of our soldiers, the most patient that are to be found 
in the world." 

Much had been hoped from the Articles of Confederation, 
but how futile they were, was now to be seen. The prophetic 
mind of Hamilton a year previously had enabled him to put his 
finger on the fatal defedls. Writing of the projedl to Duane he 
stated "It is neither fit for war nor peace. The idea of an 



i8 

uncontrollable sovereignity in each state will defeat the powers 
given to Congress and make our union feeble and precarious." 
The astute Ministry of Great Britain saw this clearly for when 
peace was declared on September 3, 1783, in its proclamation, 
they recognized the independence of each of the States named 
in their successive order, refusing to recognize the indepen- 
dence of the United States. This malign diplomacy recalls the 
fable of the woodman in Aesop who could not break the fagot 
but found it an easy task when he essayed to break the separate 
twigs. 

The old Confederation termed itself the United vStates of 
America, but it had no executive, no judiciary, not a dollar to 
pay a judge or juror, no power to define crimes against the gen- 
eral government, nor any procedure to bring criminals to jus- 
tice howsoever flagrant the wrong may have been. Said a 
writer of that period "they may declare everything and do 
nothing," and G.na\\y the Congress of the Confederation after 
repeated efforts under the impossible system to better affairs 
silently and informally disbanded. The French Minister wrote 
to his Government, " there is now in America no general gov- 
ernment, no president nor head of any one administrative 
department." 

To nobody save perhaps Hamilton and Washington were 
these conditions more plainly apparent than they were to John 
Marshall. "We may believe that the iron had entered his soul 
when flaming with patriotic fire, he had trudged afoot from 
Virginia to Philadelphia to take anew his place with the colors, 
and a ragged penniless captain of the Continental line, he had 
been denied admittance to a Philadelphia inn. He knew that 
John Adams our first Minister to the Court of St. James, though 
met by the venerable Oglethorpe, the founder of our State who 
had survived to first welcome the first Minister of the United 
States, was treated with contempt by the British Ministry who 
sent no ambassador in return. He knew that when our com- 
missioners offered a commercial treaty to Great Britain they 
were asked whether they had credentials from the separate 
States ; he knew that the public debt could not be renewed ; 
that the interest could not be met; thatcivil war, bloodshed and 
disintegration would follow if an attempt to coerce a state to pay 



19 

its assessment was made, that oursecuritieswere therefore value- 
less, that British soldiers yet held Detroit and other Western 
posts, confessedly within the American boundaries fixed by the 
treaty of peace; that Spain, controlling the Mississippi, was 
striving to withdraw the allegiance of our people west of the 
Alleghanies ; that each of the Thirteen States was a separate 
colledlion distridl, with revenue laws antagonistic to the others; 
that Counedlicut taxed Massachusetts higher than British 
imports ; that his gallant comrades of the Revolution without 
pa)^ or pensions or hope, had repaired to their homes of penury 
and distress and that our country at home and abroad was 
rapidl)^ accumulating the contempt of mankind. How John 
Marshall's soul must have thrilled with joy, when the state of 
his birth, forwarded to the Constitutional Convention at Phila- 
delphia the gilded roll of its delegates, at the head of the list 
the name, George Washington. With what exultation then, did 
he hail the efforts of that immortal body, who with patriotism the 
most disinterested, " prophetical and prescient of whate'er the 
Future had in store " labored with swerveless devotion to con- 
strudl for our country a Constitution, worthy of its heroic past, 
adequate to the necessities of the hour, comprehending in its 
majestic design powers to provide for all the exigencies of an 
expanding civilization unparalleled in the annals of man, 
securing the enlightenment, the happiness, the freedom of un- 
counted millions of the imperial race, who in ages to come will 
turn with ever increasing adoration to the flag of the freeman's 
home and hope. 

Nor was this great Virginian a sentimental, idle supporter 
of the Constitution. His election to the Virginia Convention 
of 1766 by the people of Henrico county, then including the city 
of Richmond, evinced in a striking waj'^ his strong hold upon 
the affecflions and the confidence of his people. By an unmis- 
takable majority they were opposed to the adoption of the Con- 
stitution. They had been wooed into a devotion for separate 
and unqualified State sovereignty by the native " wood notes 
wild" of Patrick Henry. On the other hand John Marshall 
lost no opportunity to make effedtive his cordial advocacy of 
the Constitution. He was assured that if he would become a 
candidate, and would oblige himself to vote against the Consti- 



20 

tution, all opposition would be withdrawn, otherwise he was 
warned that his eledlion would be contested. He declared " I 
will vote for the Constitution if I get a chance." 

The convention composed of renowned representatives- of 
the " first families of Virginia," met at Richmond on the 2d of 
June, 1788. The people of the Southern States perhaps more 
than any others, rejoiced in the opportunity to hear the joint 
discussions of their famous men, and the Virginia of that day 
afforded no exception to the rule. The graphic pen of William 
Wirt, in his life of Patrick Henry, gives us a lively account of 
the momentous gathering. " Gentlemen," writes he, "from 
every quarter of the State, were seen thronging to the metropo- 
lis and speeding their eager way to the building in which the 
convention held its meeting. Day after day from morning until 
night the galleries of the house were continually filled with an 
anxious crowd, who forgot the inconvenience of their situation 
in the excess of their enjoyment." 

Marshall was ever prone more to listen than to speak, but 
when he came forward, with quiet intrepidity as v/ise as fear- 
less, as Ivanhoe in the Lists of Ashby smote with the point of 
his lance, and rang again the shield of Brian duBois Guilbert, 
so he launched his attack upon the coryphaeus of the opposition, 
the renowned Patrick Henry. 

The story of this famous debate is familiar history. Patrick 
Henry struck every note of discord as only he could do, "We 
shall have a king" he cried, " the army will salute him as a 
monarch." He seized upon the terrors of a transient thunder 
storm and invoked the dreadful flash of lightning and the crash- 
ing of the thunder as marks of the displeasure of heaven upon 
the proposed Constitution. Marshall then but thirty-three 
years of age, seems to have impressed himself upon Heniy as a 
veritable Nestor. " I have " said Henry, " the highest respedl 
and vena-ation for the honorable gentleman. I have experi- 
enced his candor upon all occasions." Finally the resistless 
logic of Marshall, the temperate, lucid, impassive and adroit 
persuasions of Madison, and the quiet but irresistible power 
upon the hearts of his countrymen, wielded by the Silent 
Watchman at Mt. Vernon, prevailed upon the sons of the Old 
Dominion, and on June the 25th, by a majority of ten she cast 



21 

her lot with her sister States and voted for the Constitution. 

And now the Constitution was adopted, Washington the 
first President riding from Mt. Vernon to New York travel sir g 
the scene of many stricken fields, hailed with the acclamations 
of his countrymen, and by white robed choirs of his lovely coun- 
try women singing odes of welcome as they strewed flowers before 
him, now seeming more the venerable and venerated sage than 
the fearless, resolute warrior, with stately ceremonial was inau- 
gurated the first President of the United States, the government 
like some mighty machine began its rythmical movement, and 
the Nation was made. 

Oh my countrymen, when we contemplate our increasing 
millions, when we perceive how* they rejoice in the blessings of 
liberty and law, when we view our goodly heritage, stretching 
from where waves of summer seas spray the fronds and 
fruits of Porto Rico, to where frozen tides chafe Alaskan 
shores ; from the pine clad hills of Maine, to where the spicy 
breezes waft o'er the distant islands of the South Pacific, when 
we know that with all our past glories, our mission for humanity 
is scarcely begun, with what gratefulness and love should we 
dwell upon the memory of those great men of our race, who 
made this possible, who made this sure. 

It was but natural that John Marshall who took such great 
part in the formation of our government should soon be called 
to assist in its administration. 

In the Virginia Assembly, as Envoy to France, as a Mem- 
ber of Congress, as Secretary of State, he now successively 
served the people of his State and of the Nation. It was but 
natural that Marshall should have cherished the highest confi- 
dence in the wisdom and patriotism of the President, and he 
accorded an unwavering support to those measures of internal 
concern, and foreign policy, advised by that pure and exalted 
patriot, about which it now seems impossible that there could 
have been a difference of opinion among enlightened men. 

Appointed with Charles Cotesworth Pickney and Elbridge 
Gerry on a special mission to France to demand redress and 
reparation for the injuries committed upon our maritime inter- 
ests, it fell to the lot of the envoys to detedl and expose the per- 
fidy of Talleyrand, whose very name in diplomacy is the 



22 

synonym of all that is brilliant and all that is evil. Talley- 
rand, nevertheless, betrayed his ignorance of the American 
charadler, for it was clearly proven by the famous X. Y. Z. let- 
ters, published in this countr37- by Marshall audPinckney, that 
he had offered all that America required, provided the envoys 
would pay $250,000 for his private use and at the same time 
make a loan to the Dire6lor5^ We all know the scorn and in- 
dignation with which the proposition was repelled. 

Returning to America Marshall was met with cordial enthu- 
siasm everywhere. Mr. Jefferson, who did not love him, has 
left in a letter written to Madison a pleasing but rather malicious 
account of this reception, 

"Marshall was received here (Philadelphia)," he writes, 
" with the utmost eclat. The Secretary of State and many car- 
riages with all the city cavalry went to Frankford to meet him, 
and on his arrival here in the evening the bells rung till late in 
the night and immense crowds were collected to make part of 
the show, which was circuitously paraded through the streets 
before he was set down at the city tavern." A public dinner 
was given to the great Virginian by Congress, and it was at this 
dinner that the sentiment was proposed which re-echoed 
throughout the land and was received everywhere with shouts of 
acclamation, " Millions for defense but not a cent for tribute." 

The services rendered bj'^ Marshall in this mission to France 
were far reaching in their consequences, upon the future of our 
country. They opened the eyes of the quick sighted French 
statesmen, to the probity and force of the American character. 
They were made to understand the confidence of our people, in 
our vast but yet untested powers. While displeasing to Jeffer- 
son, the action of the envoys doubtless contributed to the suc- 
cess of that measure of his administration which adds most 
largely to his fame, for when a few years later Jefferson was 
President, and Napoleon was dispatching a powerful military 
force under his brother in law, to intrench French author- 
ity in the I^ouisiana territory, and America determined to 
resist, the First Consul promptly sold to our country, not only 
the city of New Orleans but the mighty Louisiana Purchase 
west of the Mississippi, now comprising many of the imperial 
states of the American Union. The effects of this mission 



23 

upon the fortunes of Marshall were more immediate. In the 
summer of 1798 he was tendered the position of Associate Jus- 
tice of the Supreme Court. A member of Mr. Adams cabinet 
was disposed to prefer Bushrod Washington, a nephew of the 
ex-President, but Mr. Adams wrote of Marshall, "He has 
raised the American people in their own esteem and if the 
influence of truth and just reasoned argument is not lost in 
Europe he has raised the consideration of the United States 
in that quarter." The appointment was made, but it was 
declined. It is said that a controlling reason for this declina- 
tion was the earnest solicitation of Washington that Marshall 
should accept a candidacy for Congress. 

Mr. Marshall's re-election to Congress was warmly opposed 
by Mr. Jefferson and his party. The contest was a severe one. 
It was industriously circulated that Patrick Henry who be- 
longed to the Jefferson party and whose name was a pillar of 
strength throughout the state was opposed to Marshall's elec- 
tion. But this noble Virginian betrayed a magnanimity and 
patriotism which the politicians of the present day might often 
imitate with profit to the country. Mr. Henry at once wrote to 
a friend in Richmond : 

"John Marshall and his colleagues exhibited the American 
character as respectable. France in the period of her most tri- 
umphant fortune beheld them as unappalled * * * ^ell 
Marshall I love him because he felt and acted as a republican, 
as an American. I really should give him my vote for Con- 
gress preferably to any citizen in the State at this junctnre, one 
only excepted and that one is in another line." That one was 
Washington. 

Mr. Marshall was elected, Congress convened, and one of 
his first duties was to announce in the House the death of the 
"hero, the patriot and the sage of America." On the 19th of 
December, 1789, with suppressed voice and deep emotion, Mr. 
Marshall addressed the chair and informed the country that 
" Washington lives now only in his own great actions, and in the 
hearts of an affectionate and afflicted people," He proceeded to 
offer the resolutions prepared by General Henry I^ee, the fam- 
ous Ivight Horse Harry of the Revolution, the son of Washing- 
ton's " Lowland beauty " and the father of our own immortal 



24 

Robert Edward I,ee. Those resolutions contained that itcper- 
ishable tribute " First in war, First in peace and First in the 
hearts of his countrymen." 

On the reorganization of Mr. Adams' cabinet, Mr. Marshall 
was nominated as Secretary of War. This he declined, but 
Mr. Pickering having been removed by the President from the 
State Department, Mr. Marshall accepted that position, and 
while holding this office on the 31SL of Jauuarj^ 1801, a little 
more than one month before the expiration of the Adams Presi- 
dential term, he was appointed Chief Justice, and this day one 
hundred years ago, in its first session at the new "Federal 
City" he took tlie oaih of office and his seat on the bench of 
the Supreme Court of the United States. 

He continued however, at the special request of Mr. Adams, 
to act as Secretar)'- of State, until his successor should be appoint- 
ed. It was while thus holding over in the State Department, that 
the political gossips of the Jefferson party have ascribed to 
Marshall the not very commendable business of signing Fed- 
eralist nominations to high official positions until lycvi lyincoln 
the incoming Attorney General of the new Administration, 
walked into the Secretar3''s office with Mr. Jefferson's watch in 
hand, pointing to the hour of twelve midnight of March the 3d, 
and thus stopped the Secretary while many unsigned commis- 
sions still lay before him on the table. By the credulous this 
story has been accepted. It seems however that there is no 
proof of it, and it is clear beyond question, that the incident is 
abhorrent to the character established b}- Marshall's entire life. 
If true, Levi lyincoln would have told Jefferson, and 5'et the 
next day, Jefferson sought out Marshall and not only took the 
oath of office before him, but on the same day invited him to 
remain in his cabinet until a successor should be appointed. 
It is also true that Jefferson did not like Marshall then, and that 
afi;erv\'ards the dislike amounted to hate. It is also true that 
Jefferson in his "Anas" published after his death took occa- 
siou to record every fact within his retentive memory, to the 
discredit of his political opponents, but he made no charge of 
this kind against Marshall. It is true that he left behind him 
a letter iu which he bitterly denounced John Adams' appoint- 
ment of what he termed the Midnight Judges and others, in the 



25 

last hours of the Adams administration, but he limits the hour 
to 9 o'clock at night on the 3d of March. To quote precisely 
he writes : 

" Mr. Adams was making appointments not for himself but 
for his successor until g o'clock of the night at 12 o'clock of 
which he was to go out of oflSce. This outrage on decency 
should not have its effect except in the life appointments, as to 
the others I consider the nominations as nullities." The 
theatrical appearance of Levi Lincoln before the startling eyes 
of the Chief Justice and Secretary of State at the mystic hour of 
midnight, armed with Mr. Jefferson's own watch, if true, would 
certainly have been recorded by the bus}' pen of the sage of 
Mouticello. Besides Mr. Jefferson was not a man to part with 
his watch, without some record of the incident. 

It is universally known that as Chief Justice of the Supreme 
Court Marshall won his greatest fame and made an impress 
upon the fortunes of the nation, which will not perish from the 
memory of men as long as the sciences of Government and Juris- 
prudence survive. 

" From his youth upward " to quote the stately periods of 
the eloquent Binney " he had been engaged in various stations 
and offices tending successively to corroborate his health, to 
expand his affections, to develop his mind, to enrich it with 
the stores of legal science, to familiarize it with public affairs 
and with the principles of the Constitution, and before little 
more than halt his life had run out, producing from the mate- 
rials supplied by a most bountiful nature a consummate work 
pre-eminently fitted for the judicial department of the Federal 
government." 

As to the personal appearance of the new Chief Justice we 
have a description from the admiring pen of Joseph Storj' : 

" Marshall is of a tall, slender figure, not graceful or impos- 
ing, but erect and steady, his hair is black, his eyes small and 
twinkling, his forehead rather low but his features are in gen- 
eral harmonious. His manner is plain, yet dignified and un- 
affedled modesty diffuses itself through all his adlions." " He 
examines," continued this great jurist, afterwards to become his 
associate and intimate friend, "the intricacies of a subject with 
calm and persevering circumspection and unravels its myste- 



26 

ries with irresistible acuteness." The Chief Justice seems to 
have made a great impression at this period upon the mind of 
that rising New Hampshire lawyer and Congressman, Daniel 
Webster. "There is no man in the court that strikes me like 
Marshall" wrote this young New England Titan soon to be 
known as the Defender, and Marshall the Expot:<atlerof the Con- 
stitution, " I have never" Webster continues "seen a man of 
whose intellect I had a higher opinion." 

From the history we have already given of this great Amer- 
ican, it is clear enough that he had enjoyed no opportunity to 
become a very learned man. His mind was not a mere machine 
of memory heavily laden. This seems to have been fully known 
to his contemporaries. Said Francis W. Gilmer in his 
Sketches and Essays on Public Character, "His mind is not 
very richly stored with knowledge, but it is so created, so well 
organized by nature or disciplined by early education and con- 
stant habits of systematic thinking, that he embraces every sub- 
ject, with the clearness and ability of one prepared by previous 
study to comprehend and explain it." 

In the delightful biography of Daniel Webster by Senator 
Henry Cabot Lodge, we find the following surprising couces- 
dion of the superiority of Marshall's genius : 

" Mr. Webster does not reach that point of intense clearness 
and condensation which characterized Marshall and Hamillcn, 
in whose writings we are fascinated by the beauty of the intel- 
lectual display and are held fast by each succeeding line, which 
always comes charged with fresh meaning." Again the same 
biographer says of the idol of New England " He cannot there- 
fore be ranked with the illustrious few, among whom we count 
Mansfield and Marshall as the most brilliant examples, who not 
only declared what the law was but who made it." 

The bearing ol the Chief Justice in the actual discharge of 
his judicial duties was as perfect as their result. Said Horace 
Binney in his eulogy, from which I have already quoted : 

" His carriage was faultless. Whether the argument was 
animated or dull, instructive or superficial, the regard of his 
expressive eye was an assurance that nothing that ought to af- 
fect the cause was lost by inattention or indifference, and the 
courtesy of his general manner was only so far restrained on 



27 

the bench as was necessary for the dignity of oflBce and for the 
suppression of familiarity." 

The august court of which he was now the chief judge is 
purely an American creation. Eaily in its history it was said 
by De Tocqueville: "A more imposing judicial power was 
never constituted by any people. The Supreme Court is placed 
at the head of all known tribunals both by the nature of its 
rights and the classes of justiciable parties which it controls." 
The great critic of our institutions was right. Its majestic 
final jurisdiction, particularly to annul legislation not warranted 
by the Constitution has been in truth as impressive to the 
political philosopher, as beneficial to the great republic. This 
feature of our judicial system exercised not onl}^ by the Federal 
but by the State courts, with final appeal to the Supreme Court 
of the United States, was startling to the absolutism of the 
world. England's highest court of justice may not arrest the 
operation of an Act of parliament even though it be in viola- 
tion of Magna Charta. "It was reserved" said Edward J. 
Phelps, "for the American Constitution to extend the judicial 
protection of personal rights not only against the rulers of the 
people but against the representatives of the people." Mr. 
Jefferson and his followers were bitterly jealous of this power. 
Indeed it is stated by the most recent biographer of Jefferson, 
the brilliant and epigrammatic Thomas E. Watson, that to 
shake the authority of the Federal Courts he adopted the plan 
of impeaching Associate Justice Chase. "The prosecution" 
said Mr. Watson "failed miserably. Chase came forth in 
triumph. Henceforth John Marshall was safe." Aye, and 
the country was safe. 

No thoughtful patriot can longer doubt that this great judi- 
cial power more than all other causes has contributed to estab- 
lish justice, provide for the general welfare and to secure the 
blessings of liberty to ourselves and our posterity. It has 
remained, however, for our own times to witness this great tri- 
bunal, with unshrinking courage and with immovable firmness, 
brand the condemnation of the Constitution, upon measure after 
measure, in decisions vital to the peace and happiness of the 
homogeneous Anglo-Saxon population of these Southern 
States, decisions which have enabled us to rebuild our homes 



28 

and reconsecrate our altars, to kindle the torch of education for 
the enlightenment of the minds of all the people, to add the 
superabounding products of our practically untouched re- 
sources of field, forest, and mine, to the aggregate wealth of the 
nation, and so endear to the people the love of our common 
country, that in its recent need the veterans of I^ee and John- 
son, and the sons of their blood, flocked to the colors with a 
spontaneity and enthusiasm unsurpassed by the veterans of the 
Union, or by the gallant youth of the North. 

In a recent discourse upon the Supreme Court before the 
Virginia State Bar Association, the Hon. George F. Hoar, of 
Massachusetts, used the language following : 

"I have spoken in behalf of a tribunal whose judgments 
upon the greatest questions with which it has ever had to deal 
have overthrown, baffled and brought to naught, the policy in 
regard to the great matter of reconstruction, of the party to 
which I myself belong, and the school of politics in which I 
have been trained." 

The great Senator from New England, who I may say as 
was true of Marshall, has been re-elected by an enlightened 
constituency which differs with him upon the most vital ques- 
tion of the day, and the future, was right. We, who are often 
favored with diatribes against this great constitutional court 
should bear in mind that series of magnificent decisions which, 
in spite of all the passions resulting from the mightiest and 
most furious civil war of which history gives an account, have 
speedily restored the Southern States to that proud equality 
among their sisters which was contemplated by the framers of 
the Constitution. Nor should we fail to remember the freedom 
from partisanship exhibited by these rulings. In each case a 
majority of the court in political belief favored the object 
intended to be accomplished by the law which their decision 
annulled, and in each case nearly all of the Judges had been 
appointed by a republican President. In these decisions so 
essential to the harmony of the national life, it seems as if the 
genius of reunited America had breathed upon the sacred ashes 
of Marshall and evoked his benignant spirit that he might again 
meet his brethren in the consultation, again deliberate, again 
counsel, again decide. 



29 

We are uot, however, to conclude that the mind of the great 
Chief Justice was absolutely colorless. Himself a soldier and 
patriot and also distinguished in political life, he could not 
divest his mind of an interest in public affairs, nor put behind 
him the opinions he had deliberately formed as to the best meth- 
ods of government. As we have seen, he knew from bitter ex- 
perience and observation the utter debility of a people without 
government, and openly declared that a government depending 
for its existence upon the varying and fluctuating action of dis- 
tinct sovereignties, could not be rescued from ignominy and 
contempt but by finding those sovereignties administered by men 
exempt from the passions incident to human nature. But there 
is nothing in all his career which betrays the slightest disregard 
for the rights of the States, or any interference with the princi- 
pal essential of State existence, local self-government. His in- 
deed might have been the famous exclamation of Chief Justice 
Chase " the Constitution in all its provisions looks to an indes- 
tructible union composed of indestructible States." In the 
famous debate in the Virginia Convention he had exclaimed : 
'* I hope that no gentleman will think that a State will be called 
at the bar of a Federal Court." This was done however before 
he was Chief Justice, in the case of Chisholm vs. Georgia, but 
the Eleventh Amendment to the Constitution made it thereafter 
forever impossible. And yet he believed that the Constitution 
had been intended to create, and did create a national govern- 
ment, and so believing he saw a meaning in the instrument 
which made the great majority of his decisions accord with 
national principles of construction and policy. 

How vastly these principles of constitutional construction 
have contributed to the power of the nation and the prosperity 
of the people is beyond the descriptive measure of human 
speech. The supremacy of the nation, its power to establish 
banks for the commerce of the people ; its power to control 
the commerce with foreign nations and between the States 
upon principles of justice ; to establish uniform rules of nat- 
uralization, and uniform laws on the subject of bankruptcy; to 
restrain unconstitutional powers attempted by States ; to strike 
down the valueless State currency at times emitted ; to uphold 
the obligations of contracts ; to promote internal improvements, 



30 

these are but a few of the vital questions to which his judicial 
labors extended. The very structure in which we gather, its 
marble walls, its exquisite architecture, the radiant lights 
which here shine "o'er fair women and brave men," the deep 
water way from your city to the sea, the wharves thronging 
with ships bearing the flags of every nation, the mighty trans- 
continental railway lines, the probable Isthmian Canal, these 
things and multitudes like these, all contributory to the welfare 
of the people, we owe to the constructive genius, the massive 
mind, the immovable firmness, the abounding patriotism of 
John Marshall and the great Judges who thought with him. 

I cannot further enlarge upon the great decisions of Mar- 
shall comprehended in thirty-four volumes of the reports of the 
Supreme Court of the United States and familiar to every genuine 
student of our Constitution and our laws. 

When old and worn, it is true that upon his venerable eyes 
fell the vision of that portentous cloud looking above the hori- 
zon, which was to bring in its wake the fiery storms of revo- 
lution sweeping away millions of property and thousands of 
priceless lives, but around his dying head burned the glories 
of an imperishable past, lighting up monuments of judicial 
achievement, which saved the nation and will live while the 
nation lives. 

It fell to his lot to survive most if not all of those mighty 
builders who had laid, and cemented with the blood of many^ 
the foundations of American liberty, and who had constructed 
the shapeliest and strongest scheme for the government of free- 
men the world has ever known. His beloved commander, the 
idol of his heart, had been long sleeping in that spot on the 
romantic banks of the Potomac, then, now, and forever to re- 
main the shrine of a nation's love. The ashes of Alexander 
Hamilton " formed for all parts and in all alike shining vari- 
ously great," for many years had reposed in an untimely grave. 
The mild and persuasive Madison, who nearly a half century 
gone, his colleague and joint laborer in the Virginia Conven- 
tion to adopt the Constitution, penning with tremulous hand 
to the people whom he loved, his last pathetic warning against 
the dangers of nullification and disunion, was now no more. 
John Adams, the fiery and incorruptible patriot, who had been 



31 

rocked in every storm of the Revolution and who declared in 
his old age, that his gift of John Marshall to the people of the 
United States was the proudest act of his life, and Jefferson, 
the author of the Declaration of Independence, nine years gone, 
were both dead on Independence Day. Marshall was now 
nearly eighty years of age. The sweet Virginia maiden, who 
more than fifty years before had won the love of the affection- 
ate, strong young soldier, coming from the war, the true and 
tender helpmeet in all the trials and anxieties of his wondrous 
career, she too, as he said, " a sainted spirit, had fled from the 
sufferings of life." 

" The mossy marbles rest 
On the lips that he has pressed 
In their bloom; 

And the names he loved to hear 
Have been carved for many a year 
On the tomb." 

Afflicted by the maladies common to extreme old age, the 
Chief Justice, who knew his Bible and loved his God, no doubt 
often dwelt upon the mournful majesty of the Psalmist when he 
exclaims : 

"The days of our years are threescore years and ten ; and 
if by reason of strength they be fourscore years, yet is their 
strength labor and sorrow." 

So with his mighty intellect unclouded to the last, on the 
6th of July, 1835, about 6 o'clock in the evening, he calmly 
met the inevitable hour and passed away in peace. 

Though dead, in the love and veneration of his country he 
lives, and shall live in glorious memory to the latest times, and 
on this day from the very flower of the country's purity and 
patriotism, from famous law schools and universities, from the 
noble profession of the law, from great cities and from hamlets, 
from the Supreme Courts of all the States and from the Supreme 
Court of the United States, from the President and from the 
Senate and House of Representatives, from the grateful hearts 
of nearly eighty millions of people, fervently come acclamations 
to the fame of this mighty patriot who taught to the people the 
imperishable truth so essential to our happiness and strength at 
home, and our strength and honor abroad; he best serves and 
loves his State who country serves and loves the best. 



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